5 New MDLs to Watch For

The U.S. Judicial Panel on Multidistrict Litigation (JPML) is scheduled to hear Oral Arguments for why cases on the following matters should be consolidated into one district. These hearings are scheduled for July 30, 2015 in San Francisco.

1. Bard IVC Filters products liability – MDL no. 2641

On May 18, 2015, plaintiffs in Bard IVC filter lawsuits filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) seeking the consolidation of all such federally-filed claims in the U.S. District Court for the Northern District of Texas, or alternatively, the U.S. District of Nevada. The plaintiffs are suing to recover for injuries caused by these filters, which are inserted into a patient’s vein in order to break up potential blood-clots. They have been fracturing and subsequently migrating into patients hearts and other organs. The injuries claimed by the plaintiffs include death, severe pain, pulmonary embolus, respiratory compromise, hemmorhage, perforation of tissue, vessels, and organs. As well as constant anxiety over the fact that metal shards are in the organs.

In the individual suits that have already been heard, expert witnesses have played an instrumental role in the decisions. There are many questions of fact to be heard by the jury. To assist the jury in coming to a verdict, experts in fields such as biomedical engineering and public health will explain the consequences of the IVC filters being defective, as well as any design or manufacturing defects Bard may have with their product, including failure to warn, or any other failure by Bard to adhere to industry and government standards.

2. Fluoroquinolone products liability – MDL no. 2642

On May 19, 2015, plaintiffs in Fluoroquinolone products liability litigation filed a motion with the U.S. JPML seeking the consolidation of all such federally-filed claims in the U.S. District Court for the Southern District of Illinois. At the time, there were 24 pending cases in 16 different federal courts, with the number expected to grow. Fluoroquinolone antibiotics are the most commonly-prescribed class of antibiotics. They are used to treat infections of the skin, sinuses, respiratory tract, urinary tract, and gastrointestinal system. Fluoroquinolone antibiotics include Cipro, Levaquin, Avelox, Noroxin, Floxin, and Factive. The lawsuits allege injuries caused by antibiotics manufactured by several companies in the industry. Then leading the plaintiffs to develop peripheral neuropathy. Peripheral neuropathy can cause chronic nerve pain, organ damage, sensory problems, muscle weakness, and personal disability.

Expert witnesses will have a major role to play in the Fluoroquinolone MDL. Medical experts will testify as to the correlation between taking fluoroquinolone and the side effect of peripheral neuropath. They will discuss whether this correlation is enough to prove causation or a lack thereof. In addition, experts in the drug manufacturing industry will testify as to the adequacy of the labels of these drugs. They will include whether there was a failure to warn by the Defendant.

3. In RE: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation – MDL no. 2639

On May 6, 2015, a motion to transfer pending actions to the U.S. District Court for the Central District of California was filed by a plaintiff on behalf of himself and others who paid $99.95 for the Pay-Per-View boxing match between Floyd Mayweather and Manny Pacquiao. The defendants in these cases are the two boxers, as well as Mayweather Promotions LLC, and Top Rank, INC. The plaintiffs filed suits after it was revealed the Manny Pacquiao, who was thoroughly dominated by Mayweather, failed to disclose a major shoulder injury before the match. They claim they would not have purchased the match if Pacquiao had disclosed of his injury. They are including all persons residing in California who purchased the fight in a subclass of plaintiffs.

The plaintiffs cite the large number of plaintiffs and a predominance of common questions of law as the reasons for their proposed consolidation. On behalf of the national class of plaintiffs, the suit alleges the defendants committed statutory consumer fraud and benefitted from unjust enrichment. The California subclass also adds a count of the violation of a California unfair competition law. Experts on boxing will be used by both parties to testify as to whether the quality of the fight sufficiently met what the consumers bargained for in purchasing the fight. Additionally, experts on sports medicine will testify about Pacquiao’s injury. Specifically how much it actually affected his performance throughout the fight.

4. Seaworld Marketing and Sales Practices Litigation (no.II) – MDL no. 2640

The defendants in this case, SeaWorld Entertainment, Inc. and SeaWorld Parks & Entertainment, Inc., filed a motion to transfer suits in the Southern and Northern Districts of California to the U.S. District Court for the Middle District of Florida. The suit involves accusations against SeaWorld of misleading ticket-holders about its alleged mistreatment of whales. Which came to light following the release of the documentary “Blackfish”. The plaintiffs claim that SeaWorld has deceived consumers into paying higher prices than they would had they known of the park’s mistreatment of its orcas.

There are a total of four suits pending in the California that SeaWorld hopes to have transferred. The plaintiffs argue that the cases should not be moved because they are relatively simple, and were filed by consumers who bought tickets in SeaWorld’s San Diego park. Expert witnesses in this case will be used to testify as to whether SeaWorld did in fact mistreat its animals, and whether their marketing efforts constituted false advertising.

5. In RE: Kind LLC “All Natural” Litigation – MDL No. 2645

On June 1, 2015, the plaintiffs in a suit against KIND, LLC, filed a motion to have the 12 pending cases in seven districts against KIND consolidated in a U.S. District Court for the Central District of California. The pending litigation against the snack bar manufacturer KIND, LLC, is for false advertising of its products. They advertise as “healthy” and “All Natural”.

The plaintiff filing the class action alleges that this false advertising is a violation of the Federal Food, Drug, and Cosmetic Act. As well as a violation of California consumer protection statutes. The complaints specifically point to the fact that the snack bars contain little nutritional value and high levels of saturated fat. In the proposed class action, the plaintiff seeks to represent both himself and all individuals nationwide who purchased “KIND Fruit & Nut Almond & Apricot”; “KIND Fruit & Nut Almond & Coconut”; “KIND Plus Peanut Butter Dark Chocolate + Protein”; and “KIND Plus Dark Chocolate Cherry Cashew + Antioxidants” since April, 2011.

The common questions of fact the plaintiff’s refer to generally involve whether the actual ingredients in KIND products are what the company markets them as. A variety of experts can be used to testify on this subject. Nutrition experts can testify on whether these ingredients are actually healthy or not. As well as the effects they have on someone consuming the ingredients. Other experts with experience in the snack bar industry can testify as to the industry standards of marketing and labeling, and whether KIND behaved in line with these standards.